July 23, 2019

July 23, 2019

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July 22, 2019

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‘Exemptions’ & Court-Sanctioned Discrimination: The Post-Hobby Lobby Tension Between the Religious Freedom Restoration Act (“RFRA”) & Federal Anti-Discrimination Laws

In Burwell v. Hobby Lobby Stores, Inc., an all male Supreme Court majority held that closely held corporations controlled by religious families cannot be required to pay for contraceptive coverage.[i]  While purporting to recognize that all women (and men) have the constitutional right to contraceptives,[ii] the Hobby Lobby Court effectively eliminated the right for female employees in religious corporations to access contraceptive coverage through employer-covered health plans.[iii]  By first analyzing the text of Hobby Lobby, this article will address the tension that the Court hascreated between the Religious Freedom Restoration Act (“RFRA”) & anti-discrimination laws like Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act of 1978 (“PDA”).  This analysis will consider how Hobby Lobby, in practice, violates federal anti-discrimination law.  Looking to Equal Employment Opportunity Commission (“EEOC”) guidance, case law, and proposed legislation, this article will assess the ways that Title VII protections outweigh an employer’s RFRA rights.  Ultimately, as an avenue around Hobby Lobby’sseemingly dire consequences, activists ought to bring a Title VII challenge to employer insurance policies that deny women the fundamental right to contraceptive coverage. 

The Trouble with Hobby Lobby

The Hobby Lobby suit was a consolidated action brought by families who are the owners of three closely held for-profit religious corporations.[iv]  The Hahn family and their company Conestoga Wood Specialties, along with the Green family and their companies, Hobby Lobby and Mardel, each have “sincere Christian beliefs that life begin at conception.”[v]  The families sued the Department of Health and Human Services (“HHS”) and other federal officials under RFRA seeking to enjoin application of the Affordable Care Act’s (“ACA”) contraceptive mandate insofar as it requires them to provide health coverage for four “objectionable contraceptives.”[vi]

The Third Circuit denied Conestoga Wood’s request for an injunction, holding that a for-profit corporation could not “engage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahn family in their personal capacity.[vii]  In the Tenth Circuit, Hobby Lobby and Mardel were granted their injunction.  The Tenth Circuit found that Mardel and Hobby Lobby were “persons” under RFRA, and that the corporations had established a likelihood of success on their RFRA claim because “the contraceptive mandate substantially burdened their exercise of religion.”[viii]  Furthermore, the Tenth Circuit noted that HHS had not demonstrated a compelling interest in enforcing the mandate against them; rather, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.[ix]

Taking up the circuit split, the Supreme Court elected to substantially broaden RFRA’s reach, thus dealing a victory to religious corporations.  RFRA prohibits the government from imposing a substantial burden on a person’s exercise of religion unless the government proves it has a compelling interest and has chosen the least restrictive means of furthering that interest.[x]  In his majority opinion, Justice Alito first rejected the government’s argument that the RFRA did not cover for-profit corporations. Alito wrote that federal law includes corporations within the definition of “persons.”[xi]  Second, in determining whether the ACA’s contraceptive coverage requirement imposed a “substantial burden,” Alito found that Hobby Lobby and Conestoga Wood faced “severe economic consequences” unless they provided the mandated insurance coverage.[xii] Specifically, the Court found that if the companies refused to provide contraceptive coverage, they would have to pay about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel.[xiii]  Alito concluded that because the ACA’s contraceptive requirement “forces [the companies] to pay an enormous sum of money . . . if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.”[xiv] 

Finally, although the Supreme Court recognized that the government had a compelling interest in providing cost-free access to contraceptives, the Court found a loophole.  Alito held that the government failed to show it was using the least restrictive means of providing contraceptive coverage to female employees.[xv]  Specifically, Alito wrote that “HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases,” noting that “[t]he most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections.”[xvi]

Thus, ultimately couching the issues of “public health” and “gender equality,”[xvii] the Supreme Court dealt a heavy blow to reproductive health advocates.  Indeed, many post-Hobby Lobby scholars have argued that Alito’s opinion represents a significant departure from other Supreme Court jurisprudence that has recognized (and even exalted) a woman’s right to privacy and reproductive choice.[xviii]  Scholars at the Women’s Law Center noted that the Hobby Lobby Court “seems to have set up different rules for reproductive rights when the rights of for-profit corporations are at stake.”[xix] For example, the Hobby Lobby Court wrote, “[t]he owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation.”[xx]  This language is in stark and stunning distinction to a quote from the Court’s 1992 decision in Planned Parenthood v. Casey,which reads: "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."[xxi] The stark contrast between these two quotes (nearly 12 years apart) illustrates the Hobby Lobby Court’s woeful disregard for women’s rights at the hands of religious liberty and corporate interests.  Tellingly, Justice Ginsburg begins her now-famous Hobby Lobby dissent with the aforementioned Casey quotation, reinforcing the disconnect between Alito’s majority and women’s reproductive health concerns. 

A Scathing & Prophetic Dissent

Justice Ginsburg’s scathing dissent points out, among a host of other things, that the Hobby Lobby majority has entered a minefield.[xxii]  In the dissent, joined by Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan, Ginsberg makes a forceful case for contraceptive coverage as not only a right but also “an economic necessity.”[xxiii]  Ginsberg states, “[e]ven if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women's well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence.”[xxiv]  Ginsburg also argues that the Court’s designation of Hobby Lobby and Conestoga Woods as akin to people who can exercise a religion is a slippery slope.  “There is little doubt” Ginsberg writes, “that RFRA claims will proliferate, for the Court's expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”[xxv]

Ginsberg’s dissent serves as fertile ground to argue that Hobby Lobby overlooks federal anti-discrimination laws.  Ginsberg reminds us that, “by law, no religion-based criterion can restrict the work force of for-profit corporations.”[xxvi]  Although Justice Alito’s majority notes that corporations seeking to engage in, for example, racial discrimination, cannot hide behind the shield of RFRA, the Court does not address possible tensions between RFRA and Title VII.[xxvii]  Neither does Alito address anything about RFRA’s tensions with sex, sexual orientation, or gender-identity discrimination.  In contrast, Ginsberg’s dissent recognizes the reality that religious employers may make decisions about women’s health care and reproductive freedom in violation of Title VII.  The Supreme Court has held that while Title VII requires reasonable accommodation of an employee’s religious exercise, such accommodation must not come at the expense of other employees.”[xxviii]  Ginsberg’s dissent illuminates the harsh and untenable tension that the Hobby Lobby majority created between RFRA and Title VII. 

III.           Title VII of the Civil Rights Act & The Pregnancy Discrimination Act May Contravene Hobby Lobby

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sex, including enacting policies that, while gender neutral on their face, disproportionately hurt either men or women.[xxix]  In 1978, Congress passed the PDA to clarify that Title VII was meant to protect employees from discrimination based on pregnancy.[xxx]  Under the PDA, employers are required to treat women affected by pregnancy “the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”[xxxi]  In International Union, et. al v. Johnson Controls, Inc., the Supreme Court held that discrimination on the basis of potential pregnancy was discrimination on the basis of sex under Title VII and the PDA.[xxxii]  Nevertheless, federal courts remain conflicted as to whether contraceptive coverage (or the denial of said coverage) falls under the protections of the PDA.[xxxiii]  The Supreme Court has yet to rule on the precise issue of whether denial of contraceptive coverage violates the PDA.  However, guidance from the EEOC suggests that denial of contraceptive coverage does amount to sex-based discrimination under the Title VII and the PDA.

Recognition of Sex-Based Discrimination for Denying Contraceptive Coverage: EEOC Guidance & Case Law

In December 2000, the EEOC issued a Commission ruling explicitly stating that Title VII’s prohibition against sex discrimination reaches employees whose employer-sponsored health insurance plans provide coverage of other prescription drugs and preventive services but fail to provide coverage of contraceptives.[xxxiv]  In the 2000 decision, a registered nurse alleged a violation of Title VII, as amended by the PDA, due to her employer’s health plan.[xxxv]  Under its health insurance plan, the respondent covered “numerous medical treatments and services, including prescription drugs; vaccinations; preventive medical care for children and adults, including pap smears and routine mammograms for women . . . [and] the cost of surgical means of contraception, namely vasectomies and tubal ligations.”[xxxvi] However, the employer’s plan excluded coverage for prescription contraceptive drugs and devices.[xxxvii]  The Commission resoundingly concluded that respondents' exclusion of prescription contraceptives violated the PDA whether the contraceptives were used for birth control or for other medical purposes.[xxxviii]  The Commission writes, “[c]ontraception is a means by which a woman controls her ability to become pregnant. The PDA's prohibition on discrimination against women based on their ability to become pregnant thus necessarily includes a prohibition on discrimination related to a woman's use of contraceptives.”  The Commission noted that Congress rationally would have intended to include contraceptive coverage within it’s PDA protections.  That is, the Commission states, “[h]ad Congress meant to limit the applicability of the PDA to contraception . . . it would have enacted a statutory exemption similar to the abortion exemption.”[xxxix] The EEOC could not have been more clear – an employer’s denial of contraceptive coverage (for whatever reason) is unlawful.  The Commission concluded it’s ruling with a relatively prophetic list of requires that employers should consider “in order to avoid violating Title VII in the future:”[xl]

Respondents must cover the expenses of prescription contraceptives to the same extent, and on the same terms, that they cover the expenses of the types of drugs, devices, and preventive care identified above. [. . .] Where a woman visits her doctor to obtain a prescription for contraceptives, she must be afforded the same coverage that would apply if she, or any other employee, had consulted a doctor for other preventive or health maintenance services. . [. . .]

Respondents' coverage must extend to the full range of prescription contraceptive choices. Because the health needs of women may change -- and because different women may need different prescription contraceptives at different times in their lives -- Respondents must cover each of the available options for prescription contraception. Moreover, Respondents must include such coverage in each of the health plan choices that it offers to its employees.[xli]

Federal courts are not required to adopt EEOC guidance; rather, courts may use such guidance as persuasive authority.[xlii]  Nevertheless, following from the 2000 EEOC guidance, several federal courts have held that employers under Title VII, as amended by the PDA, must cover contraceptives.  Shortly after the aforementioned Commission ruling, the first federal court to consider the issue of an employer’s duty under Title VII to provide contraceptive coverage was the Western District of Washington.  In Erickson v. Bartell Drug Co. employees sued their employer (a drug store) for offering an otherwise comprehensive health plan that excluded certain-types of contraceptive coverage such as “birth control pills, Norplant, Depo–Provera, intra-uterine devices, and diaphragm.”[xliii]  The district court found that “the special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs. Even if one were to assume that Bartell's prescription plan was not the result of intentional discrimination, the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII.”[xliv]

A year later, a district court in Georgia cited Erickson and certified a class of female employees alleging that Wal–Mart's lack of coverage for prescription contraception was a violation of Title VII, as amended by the PDA.[xlv]  The case ultimately settled, with the employer’s agreement to provide contraceptive coverage.  In Cooley v. Daimler Chrysler Corp., the federal district court in the Eastern District of Missouri held that the exclusion of prescription contraceptives from an employee insurance plan, while “seemingly neutral” placed a burden on women since only they have the capacity to become pregnant and the only prescription contraceptives available were for women.[xlvi]

Coupled with 2000 EEOC guidance, Erikson, Wal-Mart and Cooley provide a strong framework to support reproductive-righst activism post-Hobby Lobby.  The aforementioned case law and EEOC guidance indicate that even if an employer were to hold a sincere religious belief, said employer would be barred from refusing to provide contraceptive coverage to his female employee without violating Title VII and the PDA.  However, the PDA case law is not conclusive.[xlvii]   It will take a challenge and a definitive ruling by the Supreme Court as to whether the PDA covers contraceptive coverage before a truly solid challenge under Hobby Lobby can come to fruition.  Unfortunately, in this corporate-rights, conservative jurisprudential moment, hopes are not high as to a favorable PDA ruling like Erickson.  Nevertheless, a favorable ruling regarding the PDA’s inclusion of contraceptive coverage would assuredly provoke Title VII challenges to a religious employer’s denial of contraceptive coverage. 

Post-Hobby Lobby Guidance & Legislation 

Less than one month after the Hobby Lobby ruling, the EEOC issued new guidance on pregnancy discrimination in the workplace.[xlviii]  The guidance reaffirms that a woman may not be discriminated against by reason of pregnancy or capacity to become pregnant.[xlix]  The guidance confirms that discrimination against an employee because she “intends to, is trying to, or simply has the potential to become pregnant is . . . illegal discrimination.”[l] Citing to the EEOC’s previous guidance (mentioned above), as well as Erickson, the new guidance explicitly states that a health insurance plan facially discriminates against women on the basis of sex if it excludes prescription contraception but otherwise provides comprehensive coverage.[li]  This language is crucial for activists and attorneys hoping to dismantle Hobby Lobby through a challenge to a religious employer’s facially discriminatory health plan.  For example, taking from the 2014 EEOC guidance, if a religious employer's health insurance covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, and/or preventive dental care, then prescription contraceptives also must be covered pursuant to Title VII.

Also in the wake of Hobby Lobby, House Democrats quickly introduced legislation that would prevent employers from denying birth-control coverage to women.[lii]  The Bill, entitled, “The Protect Women’s Health from Corporate Interference Act of 2014,” would prohibit for-profit companies with group health plans from using religious beliefs to deny employees contraception coverage or any other vital health service required by federal law.[liii]  Specifically, the intended impact of the Bill is to (1) stop employers from being able to single out women’s health for discriminatory treatment; (2) stop employers from being allowed to impose their religious beliefs on their employees; and (3) protect employees from employer attempts to refuse to provide other types of health care coverage.[liv]  The Bill tracks the language of Justice Ginsberg’s dissent, and artfully highlights the potentially unlawful effects of the Hobby Lobby ruling.  For example, the Bill explicitly states, “[b]y allowing employers who otherwise cover preventive services to refuse to cover critical women’s services in this manner, the Court has sanctioned gender discrimination. Employers must not be allowed to discriminate against their employees in this manner.”[lv]

This is powerful language.  Although the Bill is presently sitting in a subcommittee on Health, Employment, Labor and Pensions (as of November 17, 2014),[lvi] it provides fertile ground for activism.  Questioned about the new Bill, Cecile Richards, president of Planned Parenthood Action Fund states, “[t]his bill would help close the door for denying contraception before more corporations can walk through it."[lvii] Indeed, the Bill’s language is an indication of the intensity of feeling stemming from the Hobby Lobby ruling, and signifies the on-going debate about RFRA and anti-discrimination laws in the United States. 

Between RFRA and Title VII, Where Does the Scale Tip?

The aforementioned case law, EEOC guidance, and proposed legislation signifies the viability of a successful Title VII challenge to employer insurance policies that deny contraceptive coverage.  Although the Hobby Lobby ruling holds that the ACA cannot require closely held corporations to follow it’s contraceptive mandate, Title VII and the PDA do require employers to provide contraceptive coverage.[lviii]   Because access to contraceptive coverage is a fundamental right (liberty and privacy), RFRA cannot trump those constitutional guarantees.

Indeed, the Supreme Court has recognized that the right to free religious exercise in a workplace cannot be exercised at the expense of other employees.[lix]  Thus, although $475 million in fines per year for denying contraceptive coverage may be a substantial sum of money,[lx] it should not come at the expense of denying female employees the fundamental right of reproductive choice.[lxi]  Columbia Law School Professor Katherine Franke agrees.  “By treating a right to reproductive health care as negotiable,” Franke states, “the Court attempts to distinguish it from other forms of health care like transfusions and vaccinations, and other forms of discrimination, like race or sexual orientation. But this effort to limit the broad reach of today’s decision only reinforces the separation and erosion of women’s right to sexual liberty and equality.”[lxii]

Finally, although the Hobby Lobby ruling suggests that women whose employers deny contraceptive coverage may be able to access said coverage on the open market, low-income women who want coverage for contraceptive methods their employers oppose are out of luck.[lxiii]  In it’s amicus briefing, HHS demonstrated that “the [contraceptive] mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing,” and “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.”[lxiv]  Ginsberg’s dissent further highlights the financial impact on low income women who wish to receive non-employer covered contraceptives: “the cost of an [intra-uterine device, or “IUD”] is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”[lxv]  IUDs – which physicians are increasingly recommending to their patients as the most effective form of birth control – can cost more than $1,000 out of pocket.[lxvi]  Currently, Hobby Lobby pays its full-time employees $14 an hour, which amounts to $560 a week before taxes.  Part-time Hobby Lobby employees make about $9 an hour.[lxvii]

Thus, with respect to the fundamental right to reproductive choice and bodily integrity, the scale must tip in favor of Title VII and the PDA.  Of course, there may beinstances where RFRA protections would allow employers to restrict certain work-place activities for the sake of religious beliefs.  For example, there is no fundamental right to eat pork on the employer’s premises (Jewish & Muslim prohibitions) or to smoke during work (Scientologist prohibitions).  However, a woman’s right to contraceptive coverage is fundamental and non-negotiable.[lxviii] RFRA cannot be a vehicle to deny women fundamental rights to reproductive choice. 

Conclusion

The Hobby Lobby ruling has created an untenable tension between RFRA and federal anti-discrimination law.  Scholars like Columbia Law Professor and Katherine Franke, Columbia Research Fellow Kara Loewentheil, emphasize the importance of activism now to right to potential wrongs of Hobby Lobby.  “The problem with these decisions,” Franke & Loewentheil commented, “is that they allow religious believers to create their own laws.”[lxix]  Advocates, activists and scholars alike must utilize Ginsberg’s dissent and the aforementioned jurisprudence about the PDA to mount a challenge to the Hobby Lobby ruling as soon as practicable.  Alito’s majority overlooked women’s rights under Title VII, and refused to consider the disparate impact that it’s ruling would have on low-income women.  Denying contraceptive coverage to female employees places an undue burden on their fundamental rights to reproductive choice and bodily integrity.  For the aforementioned reasons, post-Hobby Lobby activism continues to gain momentum, and promises – for better or worse – to ignite a formerly complacent post-Roe v. Wade feminist movement. 


[i]See Burrell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[ii]Hobby Lobby, 134 S. Ct. at 2779-80 (citing Griswold v. Connecticut, 381 U.S. 479, 485–486 (1965)).

[iii]Id. at 2780 (“. . . HHS tells us that ‘[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.’”) (quoting Brief for HHS in No. 13–354, at 50 (additional internal quotation marks omitted)).

[iv]Id. at 2775.

[v]Id.

[vi]Id. at 2774-75 (the four “objectionable contraceptives” in question are those that “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.”)

[vii]See Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health & Human Servs., 724 F.3d 377, 389 (3d Cir.) rev'd and remanded sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[viii]See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145-47 (10th Cir.) aff'd sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 

[ix]Id.

[x]RFRA prohibits the “Government [from] substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§ 2000bb–1(a), (b); see also Hobby Lobby, 134 S. Ct. at 2754.

[xi]Hobby Lobby, 134 S. Ct. at 2768.

[xii]Id. at 2757.

[xiii]Id. at 2776 (“These sums are surely substantial.”)

[xiv]Id. at 2779.

[xv]Id. at 2780.

[xvi]Id.

[xvii]Id.at 2779 (quoting Brief for HHS in No. 13–354, at 46, 49 (internal quotation marks omitted)). 

[xviii]See Hillary Schneller, Rewriting Hobby Lobby: If Women Were People, Birth Control Was Health Care, and Sex Discrimination Was Discrimination, National Women’s Law Center (Posted June 8, 2014), http://www.nwlc.org/our-blog/rewriting-hobby-lobby-if-women-were-people-....

[xix]Id.

[xx]Hobby Lobby, 134 S. Ct. at 2783.

[xxi]Planned Parenthood of Southeastern Pa. v. Casey,505 U.S. 833, 856 (1992).

[xxii]See Hobby Lobby, 134 S. Ct. at 2787-88.

[xxiii]Id.(quoting Casey, 505 U.S. at 856).

[xxiv]Id. at 2799.

[xxv]Id. at 2797.

[xxvi]Id. at 2795 (citing 42 U.S.C. §§ 2000e(b); 2000e–1(a); 2000e–2(a)). 

[xxvii]Id. at 2783

[xxviii]See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee's religious exercise, but such accommodation must not come “at the expense of other [employees]”).

[xxix]See 42 U.S.C. 2000e-2(a)(1)-(2)

[xxx]42 U.S.C. § 2000e(k).

[xxxi]Ibid.; see also AT&T Corp. v. Hulteen, 556 U.S. 701, 719 (2009).

[xxxii]See 499 U.S. 187, 199 (1991) (emphasis added). 

[xxxiii]See e.g., Stocking v. AT & T Corp., 436 F. Supp. 2d 1014, 1017 (W.D. Mo. 2006) (Concluding that plaintiffs have a sound PDA claim based on the employer’s denial of certain contraceptives in it’s health plan, and also noting, “the limitation of prescribed contraceptives applies to women only, under current availability conditions, and also disregards the importance of pregnancy or freedom from that condition for women, for health conditions . . . .”); Erickson v. Bartell Drug. Co., 141 F.Supp.2d 1266, 1267 (W.D.Wash.2001) (same); but see In re Union Pac. R.R. Employment Practices Litig., 479 F.3d 936, 942 (8th Cir. 2007) (holding that contraception is not “related to” pregnancy for PDA purposes because, like infertility treatments, contraception is a treatment that is only indicated prior to pregnancy); Krauel v. Iowa Methodist Med. Cnt’r, 95 F.3d 674, 679 (8th Cir.1996) (same).

[xxxiv]COMMISSION DECISION ON COVERAGE OF CONTRACEPTION, 2000 WL 33407187, at *1, *5 (Dec. 14, 2000)

[xxxv]Id.at *1

[xxxvi]Id.

[xxxvii]Id.

[xxxviii]Id. at *2 (emphasis added).

[xxxix]Id. at *2; see also 42 U.S.C. 2000e(k) (“This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion . . . .”)

[xl]Id. at *5.

[xli]Id. (citing to 29 C.F.R. part 1604, App. Q&A 24 and Arizona Governing Comm. v. Norris, 463 U.S. 1073, 1081-82 n.10 (1983)). 

[xlii]See Michelle S. Silverman, EEOC Issues Pregnancy Discrimination Enforcement Guide, The National Law Review (Jul. 16, 2014), http://www.natlawreview.com/article/eeoc-issues-pregnancy-discrimination-enforcement-guidance(noting that EEOC enforcement guidelines do not receive deference pursuant to Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)); See also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 n.6 (“[W]e have held that the EEOC's interpretive guidelines do not receive Chevron deference.”).

[xliii]Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1268 (W.D. Wash. 2001).

[xliv]Id. at 1271-72.

[xlv]Mauldin v. Wal–Mart Stores, Inc., No. 01–2755, 2002 WL 2022334, at *1, *1 (N.D.Ga. Aug.23, 2002).

[xlvi]Cooley v. DaimlerChrysler Corp., 281 F.Supp.2d 979, 984–85 (E.D.Mo.2003).

[xlvii]See supra note 32; see also Alexander v. American Airlines, Inc., No. 02–252, 2002 WL 731815, at *1, *4 (N.D. Tex. Apr. 22, 2002); EEOC v. United Parcel Service, Inc., 141 F.Supp.2d 1216 (D. Minn. 2001).

[xlviii]EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, No. 915.003 (issued Jul.14, 2014), http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#risk.

[xlix]Id. at 7 (“The Supreme Court has held that Title VII "prohibit[s] an employer from discriminating against a woman because of her capacity to become pregnant." (quoting Johnson Controls, 499 U.S. at 206).

[l]Id. (emphasis added) (quoting Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1401 (N.D. Ill.1994); Batchelor v. Merck & Co., Inc., 651 F. Supp. 2d 818, 830­31(N.D. Ind. 2008) (plaintiff was member of protected class under PDA where her supervisor allegedly discriminated against her because of her stated intention to start a family); Cleese v. Hewlett­Packard Co., 911 F. Supp. 1312, 1317­18 (D. Or. 1995) (plaintiff, who claimed defendant discriminated against her because it knew she planned to become pregnant, fell within PDA's protected class)).

[li]Id. at 8 (quoting Erickson, 141 F. Supp. 2d at 1272 ("In light of the fact that prescription contraceptives are used only by women, [defendant's] choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory."); see also supra note 33.

[lii]Ferdous Al-Farque, House Dems Propose Bill to Counter Hobby Lobby Ruling, The Hill (Jul. 9, 2014), http://thehill.com/policy/healthcare/211684-house-dems-propose-bill-to-c....

[liii]The Protect Women’s Health from Corporate Interference Act of 2014, H.R.5051, 113th Cong. (2014).

[liv]Ibid.

[lv]Ibid.

[lvi]H.R.5051, 113th Cong. (2014), https://www.congress.gov/bill/113th-congress/house-bill/5051/related-bills.

[lvii]Ferdous Al-Farque, House Dems Propose Bill to Counter Hobby Lobby Ruling, The Hill (Jul. 9, 2014), http://thehill.com/policy/healthcare/211684-house-dems-propose-bill-to-c....

[lviii]See generally Alexandra Brodsky & Elizabeth Deutsch, How Civil­ Rights Law Could Overturn Hobby Lobby, Bloomberg View (Jul. 21, 2014 9:03 AM), http://www.bloombergview.com/articles/2014-07-21/how-civil-rights-law-co....

[lix]See Trans World Airlines, 432 U.S. at 85 (“the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment. In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.”); see also supra notes 25-27. 

[lx]Hobby Lobby, 134 S. Ct. at 2757.

[lxi]See id. at 2779-80 (“ women (and men) have a constitutional right to obtain contraceptives . . . .” (citing Griswold v. Connecticut, 381 U.S. 479, 485–486 (1965))); see also Casey, 505 U.S. at 849 (“It is settled now, … that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood … as well as bodily integrity” (citing Moore v. East Cleveland, 431 U.S. 494 (1977); Skinner v. Okla. ex rel. Williamson, 316 U.S. 535 (1942); Washington v. Harper, 494 U.S. 210, 221–222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165, (1952))).

[lxii]Cinday Gao, Columbia Law Experts Available to Comment on U.S. Supreme Court’s Affordable Care Act Decisions, Gender & Sexuality Law Blog (Jun. 30, 2014), http://blogs.law.columbia.edu/genderandsexuality lawblog/2014/06/30/.

[lxiii]See Tara Culp-Pressler, Ginsberg Got It Right: Poor Women are Getting Screwed by Hobby Lobby, Think Progress (Jul. 1, 2014 12:46 PM), http://thinkprogress.org/health/2014/07/01/3455185/hobby-lobby-low-incom....

[lxiv]Hobby Lobby, 134 S. Ct. at 2780 (citing Brief for HHS in No. 13–354, at 14–15, 49; Brief for HHS in No. 13–356, at 10, 48; Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted)).

[lxv]Id. at 2800.

[lxvi]See Culp-Pressler, supra note 63.

[lxvii]Id.

[lxviii]See supra note 60.

[lxix]Gao, supra note 61.  

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About this Author

Jordan L. Payne, Law Student, Northeastern University Law School
Law Student

Jordan L. Payne is a third year student at Northeastern University School of Law (NUSL) and her legal interests include reproductive rights, employment law, and alternative dispute resolution.  Jordan is the Managing Editor of the Northeastern University Law Journal.   In 2013, she was a Lawyering Fellow with the Massachusetts Transgender Political Coalition in Boston.  Jordan graduated from Bowdoin College in 2012 with a B.A. in Government & Legal Studies and Sociology.  After graduation, Jordan will join the firm Skelton, Taintor & Abbott in...

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